ISIS human rights violations worse than Assad’s?

A justice mechanism to deal with the Syrian conflict has seemed low on the world’s agenda. This week brought news of US government funding cuts for a widely commended NGO gathering Syrian war crimes evidence. The Russian and Chinese vetoes of a Syria referral by the UN Security Council to the International Criminal Court keep a trial in The Hague unlikely. And it is hard to focus on accountability when the YouTubed horror films of ISIS have all but upstaged Assad regime atrocities and the Syrian opposition seems locked in an endless cycle of reincarnation.

But accountability is not off the table. As put by Michael Scharf, managing director of the Public International Law & Policy Group, a pro bono global law firm: “While events related to ISIS have temporarily eclipsed the issue, there has been a lot of action behind the scenes in the past year related to establishing accountability for Syrian atrocities.”

In fact, the groundwork for possible indictments and prosecutions has already been laid out. Meanwhile, the barbarities continue to be documented almost in real time. “A determined push for accountability,” is how Balkees Jarrah, a counsel who focuses on the Middle East for Human Rights Watch, summed up the situation.

Justice via New Jersey?

Former prosecutor-turned-academic David Crane, for one, is ready to take Syrian accountability to what he calls “its next logical step”. Best-known for indicting Charles Taylor at the Special Court for Sierra Leone, Crane has since become a vocal lobbyist for Syria. He leads the Syrian Accountability Project, which aims to document war crimes and crimes against humanity committed by all sides in the conflict.

Last year, Crane, Scharf and 11 other heavy-hitting legal practitioners drafted a ‘Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes’, outlining possible mechanisms for trying war crimes in Syria. The Chautauqua Blueprint – as it came to be called, for the lake town in New York where it debuted – was signed on 27 August 2013, six days after the chemical attack in Ghouta that killed hundreds of Syrians and awoke the world’s conscience.

Crane expects to see progress at a meeting being chaired by Christian Wenaweser, Liechtenstein’s representative to the UN and the former president of the ICC’s ruling body, on 17 November in Princeton, New Jersey. “I believe it’ll probably result in an agreement to how we’re actually going to create these courts,” said Crane.

For his part, Wenaweser anticipates more modest outcomes, calling it a preliminary “mapping exercise” carried out by “people who are likeminded only in the sense that we all think accountability in Syria is crucial”. “We want to discuss with each other informally what we think a good way forward is,” Wenaweser told IJT. “We will simply go through the different accountability options as they exist and discuss their implications, the pros or cons, what it required to get there and so on.”

Filing, piling

Besides Crane’s Syrian Accountability Project, a menagerie of other private groups, operating in and out of Syria, have made accountability their business. Two NGOs, both internationally funded and respected, working on documentation-driven accountability are the Syria Justice and Accountability Centre (SJAC) and the Commission for International Justice and Accountability (CIJA). SJAC, directed by exiled Syrian activist Mohammad Al Abdallah, has spearheaded digitally sophisticated methods to collect and catalogue videos, photos and witness testimonies from the conflict.

CIJA is run by William Wiley, a lawyer with plenty of war crimes investigation under his belt. Known for its professional stealth, CIJA works in, literally, hands-on cooperation with the Syrian opposition to document regime atrocities. “With prosecution ready case files and up to one million pages of documentary evidence analysed by military and command structure specialists – we are the guys to turn to,” said Nerma Jelacic, head of CIJA’s external relations and former spokesperson of the International Criminal Tribunal for the former Yugoslavia.

However, the US State Department recently suggested it finds otherwise. It is pulling their $500,000 in yearly support for CIJA, with officials now citing plans to fund documentation of crimes by ISIS. Jelacic said her organization was informed of the decision last month. The cuts mean that for as long as CIJA cannot find a new donor to bridge the gap, they “will not be able to continue the planned document acquisition and operations planned for next year’s case files,” she explained. The threat of fragmentation thus looms large over Syria war crimes investigations.

No single overseeing authority exists. Concerns arise of spending overlap and duplicated work. “Frankly, when it comes to accountability a little bit of redundancy is actually OK,” said Beth van Schaack, former deputy US Ambassador-at-Large for War Crimes Issues.

Still, all groups seem to be waiting in the wings, seeking leadership towards a feasible mechanism. “Momentum hasn’t yet been able to build around accountability in part because there’s been so many crisis points,” Van Schaack said. When IJT spoke with her, she was unaware of this month’s gathering in Princeton, but added: “It’s certainly worth exploring, right? And especially if there’s … a moving vehicle here we can get behind.”

Timing

Despite having organized several meetings that fed into the Chautauqua Blueprint, SJAC decided not to sign off on the statute, said Abdallah, its executive director. Even though Syrian lawyers, jurists and civil society were part of the document’s preparatory talks, he ultimately felt underrepresented. “It’s not about bringing 10 or 15 or even 100 Syrians to your workshop. We’re about wide, public consultation, and it’s public. It’s not a closed group,” Abdallah said. “You need representation – and ethnic and religious and political representation – of everybody at that tribunal.”

The theme returns when asked about a closed-door event at the Netherlands mission to the UN last month. “I’m hopeful something concrete might come out of it ,” he said with uncharacteristic softness, yet quickly acknowledged that, as with many of the “coordination meetings around Syria” he is invited to, “the donors need to coordinate more than the NGOs” and he was the only Syrian present.

Anyway, as Abdallah asks, is the timing right? “Even if you have basically the best model for the best tribunal for Syria, it’s not feasible to start now,” he maintained. “Before you stop the daily killing and have the people calm a little bit, it’s impossible to create a reasonable and sustainable justice mechanism.”

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